MONTPELIER — Agency of Human Services Secretary Doug Racine is asking a panel of lawmakers to drop objections to an administrative rule it rejected last month that would broaden the range of medical personnel permitted to order emergency involuntary procedures for psychiatric patients.
The Legislative Committee on Administrative Rules rejected the Department of Mental Health’s proposed rule last month on a 6-1 vote. It would grant authority to advanced-practice registered nurses and physician assistants to involuntarily seclude, restrain or forcibly medicate a patient.
The department is seeking to codify the practice for those practitioners, which is already in place at private hospitals. The issue has become clouded, however, by the recent move to decentralize mental health care in the state.
The Shumlin administration created a regional mental health treatment system after Tropical Storm Irene destroyed the former Vermont State Hospital in Waterbury. Act 79, which created the regional system, also required that patients receive the same rights and protections at private hospitals that they would have received at the state hospital.
A class-action lawsuit filed by Vermont Legal Aid in 1984 resulted in a settlement that set forth standards at the state hospital, which are more stringent than regulations imposed on hospitals by the federal Centers for Medicare and Medicaid Services.
Policies at the defunct state hospital required a physician to meet with a patient before emergency involuntary procedures could be used on a patient, including being medicated against his or her will.
Hospitals following CMS regulations allow nonphysician practitioners to call a doctor once a patient is restrained and ask for a prescription over the phone. The prescription can then be forcibly administered without the patient being first evaluated in-person by a physician.
Racine has written a letter to the committee, dated Dec. 2, stating his disagreement with its assessment that the proposed rule is “arbitrary or contrary to the intent of the Legislature.”
He wrote in his letter that, according to CMS regulations, “The use of restraint must be in accordance with the order of a physician or other licensed independent practitioner who is responsible for the care of the patient.”
Additionally, the CMS definition of restraint includes “a drug or medication when it is used as a restriction to manage the patient’s behavior or restrict the patient’s freedom of movement and is not a standard treatment or dosage for the patient’s condition.”
“The Department’s proposed rule permitting both physicians and other licensed independent licensed practitioners to order emergency involuntary procedures … is consistent with CMS standards for seclusion and restraint,” he wrote.
Racine and the department argue that the state and federal governments have expanded the authority of physician assistants and licensed advanced practice nurses to include previous authorities only granted to physicians. The department is maintaining the same rights and protection for patients, but the range of personnel who can order emergency involuntary procedures has expanded.
“The same procedural safeguards that were available to Vermont State Hospital patients have been preserved in the proposed rule, even though the individuals qualified under state and federal law to provide those safeguards have changed,” Racine wrote.
Jill Olson, vice president of policy and legislative affairs for the Vermont Association of Hospitals and Health Systems, said her group supports the department’s rule and believes it provides the requisite protections for patients.
“The rule contains many, many layers of protections for oversight of for seclusion and restraint when it is used,” Olson said.
The rule also incorporates CMS rules, which hospitals are already accustomed to following.
“It’s very consistent with federal regulations, which is very important to us because those are the ones we already have in place,” Olson said. “That’s why we were very comfortable with it.”
Patients’ advocates, meanwhile, maintain that providing the same protections to patients as the former state hospital means keeping the requirement that a physician assess a patient before emergency involuntary procedures are ordered.
The committee is scheduled to meet today to again consider the matter.
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